Skerritt v The Legal Practice Board of Western Australia
[2004] WASCA 28
•3 MARCH 2004
SKERRITT -v- THE LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [2004] WASCA 28
| (2004) 29 WAR 173 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 28 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:67/2003 | 14 OCTOBER 2003 | |
| Coram: | MALCOLM CJ STEYTLER J WHEELER J | 3/03/04 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | ANDREW PAUL SKERRITT THE LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA |
Catchwords: | Legal practitioners Solicitors Depression Stalking Good fame and character Fitness for admission to practice Legal Practice Board Nature of appeals Approach to be taken by the Court in determining appeal |
Legislation: | Legal Practitioners Act 1893, s 83, s 9, s 20 |
Case References: | A Solicitor v The Council of the Law Society of NSW [2004] HCA 1 Barristers' Board v Young [2001] QCA 556 Durston v The Barristers Board, unreported; FCt SCt of WA; 9 May 1978 Frugtniet v Board of Examiners [2002] VSC 140 In The Matter of an Application for Admission as a Practitioner, unreported; FCt SCt of SA; 22 December 1997 Prothonotary v Ord (1976) 1 NSWLR 421 Re Del Castillo (1998) 136 ACTR 1 Turnbull v New South Wales Medical Board (1976) 2 NSWLR 281 Victorian Lawyers RPA Ltd v X [2001] VSC 429 Walsh v Law Society of New South Wales [1999] HCA 33 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Hutchinson v Roads and Traffic Authority [2000] NSWCA 332 In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 R v Bow Street Magistrate XP Pinochet [2000] 1 AC 61 Rajendran v Tonkin [2002] VSC 585 Riley v Racing Appeals Tribunal [2001] VSC 259 Webb v R (1993) 181 CLR 41 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : SKERRITT -v- THE LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [2004] WASCA 28 CORAM : MALCOLM CJ
- STEYTLER J
WHEELER J
- Appellant
AND
THE LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA
Respondent
Catchwords:
Legal practitioners - Solicitors - Depression - Stalking - Good fame and character - Fitness for admission to practice
Legal Practice Board - Nature of appeals - Approach to be taken by the Court in determining appeal
Legislation:
Legal Practitioners Act 1893, s 83, s 9, s 20
(Page 2)
Result:
Appeal allowed
Category: A
Representation:
Counsel:
Appellant : Mr M J McCusker QC, Mr S G Scott & Dr J J Edelman
Respondent : No appearance
Amicus Curiae : Mr J A Chaney SC & Ms J E Eckert
Solicitors:
Appellant : Stables Scott
Respondent : No appearance
Amicus Curiae : State Solicitor's Office
Case(s) referred to in judgment(s):
A Solicitor v The Council of the Law Society of NSW [2004] HCA 1
Barristers' Board v Young [2001] QCA 556
Durston v The Barristers Board, unreported; FCt SCt of WA; Library No 2333; 9 May 1978
Frugtniet v Board of Examiners [2002] VSC 140
In The Matter of an Application for Admission as a Practitioner, unreported; FCt SCt of SA; 22 December 1997
Prothonotary v Ord (1976) 1 NSWLR 421
Re Del Castillo (1998) 136 ACTR 1
Turnbull v New South Wales Medical Board (1976) 2 NSWLR 281
Victorian Lawyers RPA Ltd v X [2001] VSC 429
Walsh v Law Society of New South Wales [1999] HCA 33
(Page 3)
Case(s) also cited:
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Hutchinson v Roads and Traffic Authority [2000] NSWCA 332
In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700
R v Bow Street Magistrate XP Pinochet [2000] 1 AC 61
Rajendran v Tonkin [2002] VSC 585
Riley v Racing Appeals Tribunal [2001] VSC 259
Webb v R (1993) 181 CLR 41
(Page 4)
- JUDGMENT OF THE COURT:
Background
1 This is an appeal pursuant to s 83 of the Legal Practitioners Act 1893 ("the Act") from a decision of the Legal Practice Board ("the Board") refusing to grant the appellant a certificate under s 20(b) of the Act certifying the appellant to be a person of good fame and character and fit and proper to be admitted as a legal practitioner. The matter has a tortuous history.
2 The appellant is a little over 30 years of age. He had joined the Australian Army in 1989, and resigned, in circumstances which will be mentioned further, in July 1991. Subsequently, he enrolled in the Faculty of Law at Murdoch University and obtained his LLB in 1999. He was awarded an LLM from the University of Western Australia in 2000.
3 During 1995 and 1996, he engaged in conduct in relation to a Ms Saggers, which will also be mentioned further, which resulted in the issue of an interim restraining order, obtained on an ex parte basis, against him. The complaint seeking a restraining order was dismissed in September 1996, and the ex parte order discharged, when the complainant Ms Saggers did not appear on the date set for hearing.
4 From mid-September 1997 until April 1998, he engaged in conduct towards a Ms Cross which led to his conviction on 14 February 1999 for the offence of stalking her contrary to s 338D of the Criminal Code, as it then was. That section, which has since been amended, at that time required proof of an act of stalking (particularised in this case as persistently telephoning and besetting Ms Cross) and proof of a specific intention, particularised in this case as an intent to cause apprehension. He was fined $1000 and made the subject of a violence restraining order. The appellant appealed his conviction, and that appeal was dismissed by McKechnie J on 24 September 1999.
5 In June 1999 the appellant had some contact with the Australian Taxation Office in relation to Ms Saggers. The competing allegations in relation to that contact will be discussed later.
6 In April 2000 the appellant applied for registration of his articles, and commenced employment with a firm of solicitors. Ms Saggers wrote to the Legal Practice Board in June 2000 objecting to the registration of the appellant's articles and on 30 July and 20 August 2001, an enquiry was held by the Board for the purposes of s 9 of the Act, in order to determine
(Page 5)
- whether it was satisfied that the appellant was of good fame and character for the purpose of registration of his articles. The Board appointed counsel assisting, formulated specific allegations, gave particulars of them to the appellant, received witness statements in the form of statutory declarations, and heard evidence by way of evidence-in-chief and cross-examination from what were described as "key witnesses".
The s 9 Enquiry
7 At the s 9 hearing, allegations which were seriously pursued involved the appellant's conviction for stalking, the appellant's conduct with relation to Ms Saggers, including the alleged lodging of a complaint against Ms Saggers to the Australian Taxation Office, and an allegation that the appellant had shown no remorse with respect to the offence of stalking nor with respect to his conduct towards Ms Saggers. In addition, during the course of closing submissions, counsel assisting suggested that the appellant had lacked candour in relation to the evidence which he gave before the Board.
8 Certain other allegations either were withdrawn or were not seriously pursued. An allegation that the appellant resigned from the army at a time when, because of his own behaviour, his prospects of graduating were under question and he was likely to face a "show cause" hearing, was not seriously pursued. An allegation that he had falsely claimed to a number of persons to have been a member of ASIO and ASIC, and to have been involved with the Khmer Rouge in Cambodia, was one to which the Board "had no regard" in the light of what it described as the paucity of the evidence and the age and relative unimportance of the alleged conduct.
9 The Board made a number of findings. It found that, taken by themselves, neither the stalking conviction nor the conduct towards Ms Saggers would necessarily lead to the conclusion that the appellant was not of good fame and character in the relevant sense. It made a finding of a lack of remorse on the part of the appellant. It noted in that context that the appellant had always denied the conduct, but pointed out that, in relation to the conviction of stalking, McKechnie J had observed that the combination of circumstances pointed "irresistibly" to the conclusion that the appellant was the perpetrator of that conduct.
10 In relation to the contact with the Australian Taxation Office, Ms Saggers had been employed by the Australian Taxation Office. It was alleged by her that the applicant had complained that Ms Saggers had improperly had access to confidential tax records relating to him. His
(Page 6)
- account was that he had only telephoned the Australian Taxation Office to raise a concern about the possibility of unauthorised disclosure, in an attempt to ensure that such disclosure did not take place. The Board preferred the view that there had in fact been an unsubstantiated complaint of unauthorised access.
11 So far as his conduct towards Ms Saggers generally was concerned, her evidence was of a continuing course of conduct by the appellant which involved increasingly strange behaviour; in particular, contact and attempted contact by telephone, (including contact at odd hours such as 2 am), the sending of unwanted and unsolicited emails, and other unwanted approaches. His evidence was broadly to the effect that she had been behaving strangely towards and had been stalking him. The Board accepted the evidence of Ms Saggers about those events as "substantially reliable and accurate". However, the Board considered that in giving his evidence the appellant had not deliberately misled the Board; rather, it considered that his recollection was unreliable because of his "inability to have mature insight into his behaviour during this period of his life". The Board considered that he firmly believed his innocence despite what it described as "compelling" evidence to the contrary.
12 However, having regard to the time which had elapsed since the various incidents, the fact that none of the conduct involved threats of physical violence, what the Board considered to be the indirect connection between the allegations and the appellant's character "as a lawyer" and the fact that he had worked in a legal environment by then for almost two years with no manifestation of any danger to clients, the Board expressed itself as satisfied that he was of good fame and character for the purpose of registration of his articles.
The s 20 Application
13 After the Board's determination on the s 9 enquiry, the appellant caused his articles to be registered and in due course sought from the Board a certificate pursuant to s 20 of the Act. Section 20 relevantly reads:-
"No person, however qualified in other respects, shall hereafter be admitted as a practitioner unless that person has –
…
(b) satisfied the Board, and obtained from them a certificate, that the person is, in the opinion of the Board, in every
(Page 7)
- respect a person of good fame and character, and fit and proper to be so admitted, and has observed and complied with the provisions of this Act and the rules;"
14 On 13 August 2002, the Board considered the question whether it was satisfied for the purposes of s 20(b) in respect of the appellant. It noted that letters had been sent to both Ms Cross and Ms Saggers advising of the appellant's likely application for admission and that no fresh evidence had been received from them. It also noted an opinion from senior counsel to the effect that it was arguable that conduct occurring prior to the commencement of articles, and which had been previously held not to impair fame and character, could not later preclude satisfaction of the character requirement of s 20(b). It was then resolved that the Board find the appellant "a fit and proper person under s 20(b) of the Act".
15 At its meeting on 19 September 2002, the Board considered a motion to rescind the resolution of 13 August, and a further motion that there be an enquiry conducted for the purposes of s 20(b) of the Act in respect of the appellant. Both motions were carried, after discussion. Three matters were particularly considered at that meeting. One was the issue by the appellant of a writ against Ms Saggers in August 2002 claiming damages for defamation. That writ arose from allegations made by Ms Saggers to the Board, that she had been told by others that the appellant's discharge from the army was due to certain conduct. The writ was issued shortly after the appellant had viewed the Board's file, which contained a facsimile of June 2000 from Ms Saggers setting out that allegation. Another was a letter written by the appellant to the Commissioner for Police, complaining of the conduct of a prosecuting sergeant in relation to the complaint of stalking made against him. The third matter considered was a complaint by the appellant to the Legal Practitioners Complaints Committee in respect of the conduct of counsel assisting at the s 9 enquiry.
Section 20 Enquiry - Directions
16 On 25 September 2002 the Board held a "directions meeting". Appearing at the meeting were counsel assisting the Board and counsel instructed by the appellant.
17 There was some discussion at that time concerning the basis upon which the Board would approach any further hearings. Counsel assisting submitted that the Board should approach the matter on the basis that "certain findings" had been made and that they would not be re-litigated
(Page 8)
- unless other material which had not been previously available to the Board was presented which would bear upon those questions. That submission was apparently directed to the issue of the appellant's good fame and character, counsel assisting taking the view that whether he was a "fit and proper person" had not previously been considered by the Board. It seems also to have been suggested that, in any event, previous findings of fact should not be revisited in the absence of new material bearing upon those findings. That appears to have been the view generally accepted by those members of the Board who were present and by counsel.
18 The Board resolved at that meeting to require the appellant to supply to the Board a true copy of all documents in his possession, custody or power relating to the circumstances in which he ceased to be a member of the Australian Army, together with a signed statement about the steps which he had taken to obtain relevant documents not in his immediate possession. It further directed that he provide certain other material relevant to evidence previously given to the Board concerning the circumstances of his leaving the army. He was directed to provide a statement concerning his reasons for commencing the action for defamation, a true copy of any written complaint which he or any person acting on his behalf had made concerning certain persons, and a signed statement which, in summary, was to set out his role, if any, in the submission for publication on the internet of an article dealing with his prosecution for stalking and with the proceedings before the Board.
The Notice of Inquiry
19 The notice of inquiry sent by the Board to the appellant gave notice that the Board proposed to enquire into certain factual matters, and to consider whether the appellant had satisfied the Board that he was in every respect a person of good fame and character and fit and proper to be admitted, having regard to certain other matters. The factual matters were: whether the appellant had commenced or was maintaining the defamation proceedings for the purpose of causing Ms Saggers to refrain from communicating with the Board in respect of his application for admission; and whether the appellant had contributed to, edited, or otherwise approved of, the article published on the Internet. The matters listed as matters to which the Board would have regard in considering whether it was satisfied in respect of his fitness for admission, were: whether he had been candid in his statement to the Board dated 10 October 2002 concerning the circumstances in which he ceased to be a member of the army; the results of the Board's enquiry concerning the
(Page 9)
- aforementioned factual matters; and a variety of matters relating to his conviction for stalking Ms Cross, including his continuing denial of wrongdoing.
20 There appears in the notice a further paragraph under the heading of "Matters to be considered by the Board" which refers to the Board's previous lack of acceptance of the appellant's explanation in relation to the alleged complaint to the Australian Taxation Office, and its finding that he had given unreliable evidence to it, apparently in relation to the stalking matters generally. The notice does not indicate the purpose for which those matters would be considered by the Board, but on any fair reading of the notice, it would appear that those were matters which the Board was proposing to take account of, together with the other matters to which it had referred.
Issues at the hearing
21 At the commencement of the hearing counsel assisting indicated that he did not seek to pursue the question of the purpose for which the writ was issued against Ms Saggers. In dealing with the findings previously made on the s 9 enquiry, counsel assisting submitted that to the extent that those findings would bear upon the question of fitness and propriety, the Board should not "reopen those matters". In isolation, it is not clear whether this submission was directed to the reopening of questions of fact or conclusions of law, or both. However, counsel assisting went on to explain that in his submission, even assuming the Board was not satisfied that there was any new factual material at all, the Board would not necessarily have to conclude that the appellant had "those aspects of ethical understanding necessary to be a fit and proper practitioner".
The Board's Conclusions
22 At the conclusion of its hearing, the Board published lengthy reasons. The Board's ultimate conclusion, by majority, was that it was not satisfied that the appellant was in every respect a person of good fame and character and fit and proper to be admitted as a legal practitioner "at this point in time".
23 In summary, the Board took the view that the earlier decision taken for the purposes of s 9 was relevant but not conclusive for the purpose of its decision pursuant to s 20(b), even if no further information had been available to it. However, it was clear that certain of the further matters which emerged during the course of the enquiry were considered by the Board to be of decisive significance. His conduct in the army and his
(Page 10)
- ingestion of anti-depressant medication over a period was said by the Board to be "significant". In that context, it was said that the appellant's misconduct regarding the two women and his absence of a sufficient degree of insight into the consequences of that conduct "can all now be re-evaluated in a better context". The information concerning the conduct in the army and the administration of anti-depressant medication, was information which was not available to the Board at the time of its s 9 decision, and the Board took the view that:
"with the benefit of that additional information, the context of that [s 9] decision is altered. An approach then which essentially gave Skerritt the 'benefit of the doubt' … no longer remains appropriate, given the current state of enhanced knowledge of this Board."
The s 83 appeal
25 Section 83 provides:-
"There shall be an appeal to the Full Court of Western Australia by any person to whom the Board shall have refused to grant a certificate under section 16(b), section 20(b) or section 33 or who is aggrieved by a decision of the Board refusing the issue or renewal of a practice certificate."
26 The three sections specifically referred to all deal with the Board's certification that a person is a fit and proper person to be admitted. Section 16(b) deals with managing clerks, s 20(b) is the section under consideration here, and s 33 is to the effect that a practitioner struck off the roll or suspended from practice is not able to be readmitted until there has been produced a certificate from the Board that the applicant has satisfied the Board that he or she is a fit and proper person to be readmitted.
27 In the context of the appeal provided from a decision under s 33, the nature of the s 83 appeal received consideration by this Court in Durston v The Barristers Board, unreported; FCt SCt of WA; Library No 2333; 9 May 1978. It was apparently submitted in that case, that the appeal should be regarded as an appeal de novo and that the court would have
(Page 11)
- authority to hear evidence, to determine the issue for itself, and if it thought fit to set aside the decision of the Board and order that a certificate be granted. That submission was rejected by Burt CJ in the following terms:-
"When that submission is placed into the context of the Act and specifically having regard to s 33(1) of it, it appears that if accepted the evident intention of that sub-section, which is conveyed in the strongest terms including a denial of the jurisdiction of this Court to re-admit, that the opinion of the Board as to fitness is made decisive would be qualified to the point of contradiction. In practical terms the jurisdiction of this Court to re-admit which in the absence of a certificate of fitness from the Board is denied by s 33(1), could be regained by this Court on appeal which counsel submits to be a re-hearing de novo granting the certificate itself. I cannot think this to be the legislative intention. These observations apply as well to the appeal regarded as an appeal in the strict sense and this is so because they are directed not to the way of proceeding but to the order which this Court can make so as to bring the proceedings to a close.
But the appeal must be given some efficacy and I think so as to harmonise it with the Act generally it should be held that the appeal given should be likened to a mandamus so that this Court in dealing with it should be concerned to see that the Board in forming its opinion has conducted the proceedings before it in a proper way and has formed its opinion bona fide and upon relevant material – and only relevant material – capable of supporting it. If it should not so appear then the Court could enforce a reconsideration of the application. But it could not go further. It could not order the Board to certify to an opinion which it does not hold, nor could it substitute its opinion for that of the Board and so in effect certify to itself. Compare Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at p 758, per Dixon J."
"In our opinion, therefore, the appeal envisaged by s 83 of the Act is stricto sensu and is limited to a consideration of the manner in which the application was made to the Board, an
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- examination of the evidence before it for the purpose of concluding as to whether or not its opinion may rightly be held thereon and not to supplant the opinion of this Court for that of the Board on the available evidence. In other words in like manner to the review of an administrative decision in proceedings taken under the prerogative writ of mandamus. To hold otherwise would be to fail to acknowledge the limitation placed upon this Court's jurisdiction by s 33 of the Act."
29 As Burt CJ noted at the conclusion of his reasons, there may be some difference of approach between that taken by the Chief Justice and by the majority. Although all members of the Court likened the appeal to a review in the nature of mandamus, the majority also appear to have taken the view that the appeal might be regarded as an appeal "strictosensu", while the Chief Justice did not. The importance of that distinction is, as we apprehend it, that in an appeal in the strict sense, where the Tribunal below has fallen into error of law or made a finding of fact which is clearly wrong, the appellate court may substitute its own judgment (see Turnbull v New South Wales Medical Board (1976) 2 NSWLR 281 at 297, per Glass JA). There is clearly, however, a tension in the reasons of the majority between the expression of that view, and the description of the appeal as being "in other words in like manner to the review of an administrative decision … under the prerogative writ of mandamus". In that latter case, the Court will not substitute its own decision, but will identify the error, if necessary quash any decision below, and remit the matter for further consideration. It is not possible to discern from the reasons of the majority how that tension is to be resolved. In the result, their Honours took the view that the decision under appeal was not in error so that the appeal was dismissed.
30 In our view, the appeal pursuant to s 83 should be treated in accordance with the reasons of Burt CJ in Durston. We take that view for a number of reasons. On one view, the opinion expressed by his Honour was one shared by all members of the Court. Even if it were not, it is our view that his Honour's reasons are persuasive in respect of an appeal from a decision pursuant to s 33. In the context of an appeal from a decision made under s 20, the structure of the Act, in our view, also points to the conclusion that it is not the legislative intent that this Court should substitute its own opinion for that of the Board. It is to be noted that, once a person has satisfied the further qualifications for admission set out in s 20, including obtaining a certificate, it is open to any person having reasonable grounds to object to the admission of the person as a practitioner pursuant to s 21. A notice is to be lodged in this Court seven
(Page 13)
- days at least before the day on which the application for admission is made, stating the grounds of the objection, and s 21 permits a person objecting to "be heard … with or without witnesses, to oppose such admission". By s 22, it is then provided that:-
"(1) No person shall be admitted a practitioner except by the Full Court."
32 The view which we prefer has also the advantage of fitting most comfortably with the procedure which has been followed in this case, and which one would expect to be followed in the general run of such appeals. As a statutory body exercising a public function, the Board has not appeared in this appeal, but abides the decision of the Court. The Hon Attorney-General was granted leave to appear as amicus curiae. Unlike the ordinary appeal, there was therefore no scope, for example, for the respondent to file a notice of contention submitting that the decision below should be upheld on other grounds. If asked to "substitute its own opinion" the Court would be doing so in the absence of a procedure which can sometimes assist in the formation of a correct opinion.
33 Finally, turning to look at the basis upon which this appeal was actually fought, neither the appellant nor the counsel for the Attorney-General dealt in submissions with the nature of the appeal. The notice of appeal seeks not only to have the Board's decision set aside, but also seeks in lieu thereof an order that the Board issue a certificate to the appellant. However, during the course of argument, one member of the Court put to counsel for the Attorney-General that if the Board had taken factors into account which it should not have, then it must follow that its
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- decision should be set aside, and counsel agreed with that proposition. That is a proposition consistent with the view of the appeal taken by Burt CJ in Durston. In reply, counsel for the appellant made no submissions in relation to that proposition.
34 In summary, it is our view that the function of this Court on this appeal is confined to the identification of error, in the sense of error of law or taking into account of irrelevant material, or matters of that kind. In considering whether error is to be found, it is confined to the grounds of appeal as particularised by the appellant, see Walsh v Law Society of New South Wales [1999] HCA 33 at [49], [56] and [67]. It should not, on this appeal, seek to determine for itself the ultimate question of the appellant's good fame and character and fitness to practice.
The grounds of appeal
35 The grounds of appeal fall into a number of distinct categories. There is some overlap between them, and some grounds deal with more than one issue. It is therefore convenient to deal with the issues raised by those grounds, rather than with each numbered ground individually.
Conduct in the Australian Army
36 At the proceedings pursuant to s 9, the Board had before it information from Ms Saggers that she had been informed by others that the appellant had been discharged from the army for threatening his commanding officer with a gun. That allegation was the genesis of the Board's concern for the appellant's conduct in the army. That allegation was refuted by an affidavit from the appellant's former commanding officer, who also gave oral evidence briefly at the s 9 hearing.
37 However, it was clear even at that stage that the material produced on behalf of the appellant was concerned narrowly to refute the particular allegation against him, rather than to explain the circumstances under which he came to leave the army. For that reason, it appears, some concern with the appellant's conduct while in the army persisted. At directions hearings held for the purposes of the various proceedings before the Board, the appellant's solicitors were pressed for fuller details of the circumstances in which he came to leave the army. The response made on his behalf was to the effect that, as he had refuted the specific allegation against him, there was no need for further material to be provided.
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38 In the end, directions were ultimately made prior to the enquiry pursuant to s 20 that the appellant request the army to make certain material available to the Board, and that he file a statement setting out the circumstances in which he came to leave the army.
39 The documents in due course obtained from the army revealed a pattern of comments about the appellant which suggested concern about whether it was appropriate for him to remain in the army, and which commented adversely upon aspects of his performance. They also revealed a particular incident in which the appellant had apparently attempted suicide by the ingestion of a large quantity of Panadol Forte. That incident appears to have been a major precipitating factor in the appellant leaving the army. In his statement filed as ordered, the appellant referred to depression which he suffered at the time, but made no reference to that specific incident.
40 The Board took the view that the appellant's conduct in relation to the disclosure of material relevant to his leaving the army was a "calculated course of obfuscation, spoiling manoeuvres, and … adoption of carefully selected half truths". Members of the Board took the view that during his evidence at the s 20 enquiry, he was attempting only to reveal to the Board that part of the facts about his mental health at the time which he considered the Board should know. On the basis of that view, the Board considered that his conduct revealed a failure to comprehend the extent of his obligation of candour in dealings with the Board, and considered his conduct in this respect to be manipulative and ultimately "deceitful". Further, in the light of knowledge of that incident in 1991, and in the light of disclosure of his treatment by anti-depressant medication on a continuing basis, from time to time, by family members, the Board considered that a "new and significant component of knowledge" was added to the evaluation of his behaviour between 1995 and 1998, regarding Ms Saggers and Ms Cross.
41 There are two issues which arise in relation to this matter. The first is the question of whether there has been a lack of candour displayed by the appellant, and if so, the significance of that lack of candour. The second concerns the relevance of the 1991 events to the appellant's fitness to be admitted. The two are obviously linked. A failure to disclose that which is on any view plainly irrelevant cannot, it seems to us, be held against an applicant for admission. On the other hand, a failure to disclose that which is plainly understood to be relevant would reveal an attitude giving rise for concern about the appellant's fitness to practice.
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- There is a more difficult middle ground, into which it seems to us that these matters may well have fallen.
Relevance of conduct in Army
42 Turning first to the question of the relevance of the suicide attempt in particular, it is our firm view that the Board has drawn conclusions from it which were simply not open to it. It appears from par 20.22 through to par 20.25 of the Board's reasons, that it was the additional factor of the suicide attempt and the taking of anti-depressant medication which led the Board to form the view that the appellant required, but had never had, a "truly independent full psychiatric evaluation". The Board appeared to regard those factors, taken in conjunction with the misconduct concerning Ms Saggers and Ms Cross, as grounds for the view that there was reason to doubt that the appellant's state of mental health was such as to render him a fit person to be admitted.
43 Leaving aside for the moment the misconduct with regard to the two women, the difficulty with this reasoning, it seems to us, is that there is no rational basis for a conclusion that a suicide attempt some 12 years prior to an application for admission, either alone or in combination with the taking of anti-depressant medication, renders a person unfit to practice. It is necessary to step back a moment and to consider the nature of the enquiry into fitness to practice. The practitioner owes duties of candour to the Court, owes duties of candour, honesty, and competence to clients, and obviously must be a person who is able to be trusted to behave with propriety and fairness in relation to all those persons with whose important personal affairs a practitioner may be entrusted.
44 Depression per se – even depression leading on one occasion to a suicide attempt – does not seem to us necessarily to detract from a person's capacity to perform any of the duties required of a practitioner. One would need expert evidence in relation to the matter before such a view could possibly be formed, since it is contrary to ordinary experience. Many persons in the community – including no doubt many members of the legal profession – suffer from depression, and yet are able to fulfil their duties in an honest and competent way.
45 Of course, if depression were so severe and of such long standing that it was thought that it might lead an applicant to neglect the affairs of his or her clients, that depression could be an issue relevant to fitness to be admitted. There is, as we apprehend it, no suggestion here of any lack of fitness in that sense.
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46 Depression or a similar condition may also be relevant where it has caused a person to act in an inappropriate way, as appears to have been the case in Barristers' Board v Young [2001] QCA 556. In such a case, it may have a bearing on the nature and probable duration of the unfitness. Unlike that case, however, there was no evidence before the Board of any link between the appellant's depression and his conduct in relation to Ms Saggers and Ms Cross.
Duty of Candour
47 However, although it is our view that the Board was plainly in error in adopting the attitude which it did to the ultimate relevance of the appellant's depression and suicide attempt, that does not mean that the appellant did not owe a duty to the Board to disclose those matters. The duty to disclose arises in relation to material which may potentially be relevant to fitness to practice. Issues of the mental health of an applicant are obviously issues which may warrant enquiry, since some may be capable of having a bearing upon an applicant's fitness to practice. In an extreme case, as we have noted, depression may be relevant.
48 The fact that such enquiry as has been undertaken in this case ultimately reveals nothing of relevance, does not mean that the enquiry itself should not have been undertaken and that the information should not have been disclosed. Matters relevant to a person's fitness for admission include matters which might, as a matter of ordinary experience, put the Court or any interested person on notice that further enquiry as to the applicant's fitness to practice may be prudent; see Re Del Castillo (1998) 136 ACTR 1; Frugtniet v Board of Examiners [2002] VSC 140.
49 In our view, it was open to the Board to reach the view that the appellant had been, deliberately, less than frank in his disclosure of the circumstances in which he came to leave the Australian Army. That lack of candour was a factor relevant to his fitness to be admitted, notwithstanding that the circumstances as the Board ultimately found them to be did not have a bearing on his fitness to practice. The weight to be attached to that lack of candour is a matter for the Board. It would take into account a number of things. One is that practitioners owe a duty of candour to the courts and to others, notwithstanding that at times it may be personally embarrassing or inconvenient to perform that duty, so that there may be cause for concern if an applicant has been less than candid with the Board. However, it would also take into account the sensitivity and the distressing nature of the incident involved, the fact that the appellant did eventually authorise disclosure of his army records to the
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- Board, and the fact that, as we have said, the circumstances ultimately disclosed were not capable of leading to a finding of unfitness for admission.
Conduct in Army - Conclusions
50 In relation to the grounds of appeal dealing with this issue, which are essentially particulars 1.1 – 1.4 of the particulars to ground 1, it is our view that it was open to the Board to conclude that the appellant had shown a lack of candour in the way in which he went about making information concerning these matters available. That lack of candour was a factor relevant to his fitness for admission.
51 However, the Board was in error in taking the view that the fact that the appellant had attempted suicide 12 years before was relevant to his fitness to be admitted as a practitioner at the time of his application. When one looks at the way in which the Board framed its reasons, the suicide attempt appears to have been a very significant factor in its decision. As noted earlier, the Board took the view that that information altered the "context" of the earlier decision in relation to his character which was made for the purposes of s 9. Further, it appears that the very adverse view which the Board took of the appellant's lack of candour in relation to this information was influenced by its view that the information was directly relevant to the appellant's fitness to practice. For those reasons, it seems to us that the error surrounding this issue would require the setting aside of the decision of the Board published 31 March 2003. For the reasons already given, it is our view that the appropriate course then would be to remit the matter to the Board for further consideration in accordance with law. Since the whole matter will require reconsideration, it also appears to us that it is desirable to consider the remaining grounds of appeal.
Conduct relating to Ms Saggers
52 This question is raised by two of the grounds, 1.7 and 1.5. It is contended that the Board erred in stating that the Board had previously, in the s 9 proceedings, preferred Ms Saggers' version of events, including her version in relation to what the Board described as the appellant's "ill motivated complaint to the Australian Taxation Office". It is also contended that the Board was wrong in concluding that the appellant's issue of a writ for defamation against Ms Saggers (for having falsely alleged that he had been discharged from the army for threatening his commanding officer with a gun) was relevant to the issue of whether he was fit and proper to be a legal practitioner.
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53 These grounds raise a number of issues, they being: the relationship between s 9 and s 20; the question of what constitutes fitness or unfitness for admission; and the factual matters contended to be in error.
Effect of s 9 decision
54 It was an assumption underlying the appellant's argument that, once the Board had found for the purposes of s 9 that an intending articled clerk was of good fame and character, that decision was conclusive, as to all matters known to the Board at the time of that decision, for the purposes of s 20. It was submitted that only if new matters relating to character had occurred or had come to light could the Board, having found in favour of an applicant under s 9, nevertheless conclude for the purposes of s 20 that it was not satisfied that the person was of good fame and character or, so far as character was concerned, was not fit and proper to be admitted.
55 It is our view that that submission is incorrect. The satisfaction to which s 20 refers, in our view, must be an actual satisfaction reached at the time at which the person applies pursuant to s 20. The Board is not estopped from reconsidering material which was available to it at the time at which a decision was made for the purposes of s 9. The evident purpose of the Act to protect the public by ensuring that appropriate attention is given to the question of a person's fitness for admission at the time immediately prior to admission would be undermined, if a Board felt constrained by an earlier decision for the purposes of s 9, even if that earlier decision was manifestly erroneous.
56 We note that in relation to the somewhat similar status of "student-at-law", the Court of Appeal of New South Wales, in considering the purpose of studentship-at-law, observed that one of the purposes it served was that of providing "a means whereby, prior to embarking upon legal studies, a person can ascertain whether there is likely to be objection to his admission to the Bar on account of his past conduct." (Prothonotary v Ord (1976) 1 NSWLR 421 at 424). It was thought by the Court of Appeal that admission as a student-at-law provided some guidance to the intending practitioner as to the way in which his or her eventual application for admission to practice might proceed; however, such an admission was not seen as being conclusive for that purpose, even in respect of past conduct.
57 Had the statutory intention been to bind the Board considering fitness for the purposes of s 20 by reference to any earlier determinations for the purpose of s 9, it would have been easy to do so. That course has now been taken in New South Wales. In that State the Legal Profession Act
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- 1987 by s 13 and s 15, provides a procedure whereby a person may apply to the Admission Board for a declaration that matters disclosed will not adversely affect an assessment of his or her good fame or character or suitability for admission, and such a declaration, made by the Supreme Court, is binding on the Admission Board unless there has been a failure to make full and fair disclosure of all relevant matters.
58 However, although it is our view that no estoppel operates in this area, a Board considering whether it is satisfied for the purposes of s 20 will no doubt pay due regard to any decision reached in relation to the same applicant for the purposes of s 9, particularly where such a decision has been reached after a careful examination of the merits, as was the case in respect of the appellant.
59 In the present case, the Board was correct in its view that it was open to it to reach a different view from that reached for the purpose of s 9, even in relation to the same facts. It also appears to have been mindful of the desirability of paying due attention to the Board's earlier decision. Analysing that earlier decision, the Board noted that the result of the s 9 inquiry was "hardly a triumph" for the appellant, since the evidence of Ms Saggers was preferred to his, and since his evidence, where it was found to be in conflict with that of Ms Saggers, was held to be unreliable and reconstructed. For that reason, the ground of appeal which asserts that the Board erred in its understanding of aspects of the earlier decision, cannot succeed.
60 The Board noted, and appears to have accepted, the earlier Board's finding that at that time it did not find that the appellant had deliberately misled the Board but rather that his recollection was unreliable because of his inability to have mature insight into his behaviour during a period of his life. What was not considered by the Board at the stage of the s 9 inquiry, but was discussed in the decision now the subject of appeal, is the relevance of that lack of mature insight.
Lack of insight/Lack of remorse
61 There is, in many of the reported decisions concerning the question of fitness to practice, a concern demonstrated by the courts to ascertain the extent to which the person whose conduct is in question appreciates the seriousness of that conduct, and has insight into its relevance for the person's fitness to practice and insight into its effects on others. For example, in In The Matter of an Application for Admission as a Practitioner, unreported; FCt SCt of SA; 22 December 1997, the Court was concerned with an applicant for admission who had, some
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- considerable time previously, during the course of a very acrimonious custody dispute, been guilty of a serious contempt of the Family Court. Although the contempt itself was of concern to the Court, much greater concern appears to have been caused by the attitude of the applicant, who failed to accept his conviction for contempt and who apparently was unable or unwilling to acknowledge that his case had been dealt with according to law. In the conclusions of Doyle CJ, the matter was put in the following way (at page 7):
"I do not regard the conviction for contempt as precluding a finding that the applicant is of good character. The time that has passed, and the circumstances of the conviction enable me to conclude that the conviction can be treated as a past lapse, and one that does not demonstrate a continuing inability to behave in a manner befitting a practitioner.
However, the applicant's attitude to the conviction does indicate that the applicant lacks that respect for the courts and the processes of the law which one would expect in a legal practitioner, who is obliged to uphold those institutions and processes. Or, at the least, the applicant's attitude indicates that when his personal interests are involved he finds it difficult to behave in the manner in which a practitioner should.
As to the conviction in the Magistrates' Court, I can accept the applicant's refusal to acknowledge his guilt. But I must, and do, proceed on the basis that he is guilty, and on the basis that he lied to the magistrate. … I also proceed on the basis that the applicant finds it difficult to accept that he has been treated lawfully and fairly, and difficult once again to accept an adverse decision, at least when his own interests are involved."
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63 Similarly, in Victorian Lawyers RPA Ltd v X [2001] VSC 429, Harper J was concerned with an applicant for admission who had pleaded guilty to six counts of making a false report, which offences had been committed over a relatively short period. The false reports implicated a number of innocent people. The applicant was otherwise a person of good character and reputation, and by reason of the personal circumstances which gave rise to the offences, the Board of Examiners had found that there was very little, if any, moral blame to be attributed to her. His Honour in that case was not concerned so much with the nature of the offences, as with the attitude of the applicant towards them. He found, in effect, that she had not disclosed them as fully as she might have, that she tended to regard herself as a victim and that it appeared that she had little, if any, insight into the impact of her offences on those innocent persons whom she had accused of crimes. In finding that she was not at that time a fit and proper person to be admitted, his Honour observed (at [36]) that "One who is not capable of dealing appropriately with awkward facts of this kind in one's own life (that is, that she has or may have caused great harm to others) cannot be entrusted appropriately to advise clients who are similarly placed".
64 Factors of this kind were adverted to by the Board in its reasons at paras 19.8(d)(e), 22.26 – 22.30 and 20.34. It identified the appellant's lack of insight into his conduct towards Ms Cross and Ms Saggers, and his lack of remorse, as a cause for concern. Although it was misconduct in a personal, rather than in a professional capacity, the appellant's behaviour towards Ms Saggers and Ms Cross was in our view plainly capable of giving rise to a finding that he was not fit to be admitted to practice (cf A Solicitor v The Council of the Law Society of NSW [2004] HCA 1 at [19] and [20]). It displayed a lack of understanding of the need to respect the dignity and privacy of another person, where they conflicted with the appellant's own desires, and a disposition to oppress and to harass in the pursuit of his own interests. In the absence of insight into that behaviour and in the absence of remorse, it would be difficult to regard the appellant as a person in whom clients should be encouraged to place complete trust, particularly when it is remembered that legal practitioners are not infrequently consulted by vulnerable persons and are often entrusted with sensitive personal information.
65 In that context, the Board considered the issue of the writ against Ms Saggers. It is our view that the issue of that writ was relevant to the appellant's fitness to practice, for precisely the reasons which the Board indicated. The ground of appeal in this respect asserts that the Board misunderstood legal advice to which it referred in its reasons, contending
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- that that advice was that the issue of a writ might provoke Ms Saggers to object to his admission, rather than advice that he should not issue the writ. It is our view that the Board did not misunderstand that advice; rather, it correctly understood that he was counselled that, while he would be within his rights to issue the writ, it would be prudent to refrain from doing so. He disregarded that advice from a senior member of the profession.
66 The grounds of appeal also contend that there was no evidence to support the view, expressed by the Board, that the writ was further evidence of a determination to pursue Ms Saggers. Even if, as may be the case, this is an overstatement of the position, the heart of the Board's finding in relation to the issue of the writ was not concerned with whether it evidenced a determination to pursue Ms Saggers further. Rather the Board was concerned with whether the issue of the writ demonstrated a lack of remorse, a lack of appreciation of his past conduct towards Ms Saggers and a lack of insight.
67 In that respect, it appears to us that the finding which the Board made was well open to it. It observed that there had been conduct against Ms Cross and Ms Saggers over a considerable period of time. That was, in the view of the Board, indicative of a lack of recognition of the level of the appellant's past wrongdoing. Recognition of the seriousness of that past conduct might well have been expected to lead to an understanding of why Ms Saggers had acted as she did, even if she was misinformed in respect of the information provided by her to the Board, and to lead to a desire not to contribute further to that hurt and distress by the issue of defamation proceedings. Not only was there no apparent insight and remorse, but there was not even, as the Board observed, an apparent desire by the appellant to put his past behind him and move on; rather, the Board considered that the appellant had seized the opportunity for a "another bout of jousting" with Ms Saggers. In our view, that conclusion was open to it, and was relevant to the appellant's fitness to practice for the reasons which we have discussed.
The attempted internet publication
68 This is a matter which can be shortly disposed of. Communication was apparently received by the Board from a confidential source about an anonymous article submitted for publication by an unidentified person to an internet site. It appears that it was not in the end published on that site.
69 It is a scandalous document written in terms strongly sympathetic to Mr Skerritt, and misrepresenting a number of the proceedings in which he
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- has been involved. The Board found that its content indicated that it must necessarily have been compiled with source material only known by either Mr Skerritt or persons very close to him. It vilifies Ms Saggers. The Board observed that the views expressed in that article in relation to the courts, Ms Cross and Ms Saggers were "repugnant", and that they demonstrated a disregard for the gravity of the wrong found to have been committed by Mr Skerritt in relation to Ms Cross, in respect of which his conviction stands unimpugned. Further, the Board found that the views expressed in the article revealed contempt for the justice system in Western Australia.
70 Obviously, were it the case that the appellant had been found to be either the author of, or a significant contributor to, that article, that conclusion would have a very serious bearing on his fitness for admission to practice. The Board considered that it was overwhelmingly probable that the appellant was the original source of much of the information used in the article. Further, it found that his answers to questions about that article were at times less than convincing. Both of those observations appear to us to be findings which it was open to the Board to make. Having regard to the evidence before it, and the content of the article, it was open to find that the detailed nature of the material was such that it could only have been provided by the appellant or by persons close to him. Having considered his demeanour during the course of his evidence, it was open to the Board to find his answers unconvincing.
71 However, although it is our view that there is no substance in the ground of appeal which complains about the Board's finding that it was probable that the appellant was the original source of much of that material, nothing in any event turns on this ground, because of the way in which the Board then treated that article. It reached the view that it was "not prepared to make an affirmative adverse finding against [the appellant] in the face of his denial that he was author or contributor to views expressed in the article". In the end, the Board then "eliminated this issue from its overall s 20(b) assessment as regards Mr Skerritt".
72 It seems to us that there are two aspects of the article which the Board considered. The first was the probable source of factual information it contained. It found that it was likely that the appellant was the source of much of that information. As distinct from the factual information, there was a further question of editorial tone which was of serious concern to the Board. It appears to us that the finding which the Board was not prepared to make was that the appellant had been either the author of the article or one with a significant influence upon that tone.
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- Although it was submitted to us that there was some inconsistency in the Board's finding that it was probable that the appellant was the originator of much of the material, but that the Board was not prepared to make a positive finding against him, it seems to us that that apparent inconsistency is resolved when one draws a distinction between factual content and editorial tone. The Board apparently reached a conclusion in respect of the former, but not the latter. For that reason, and because it was the tone that was of primary concern to the Board, it eliminated that unpublished article from its consideration.
Questions of bias
73 It is alleged, by this ground of appeal, that three members of the Board should have disqualified themselves on the basis of their membership of the Women Lawyers Association. At the time, one of the members was President of that Association and another was the immediate past President. That submission was made in the light of a letter sent by the Association to its members. There was apparently with that letter a covering letter, which has not been put before us, and which appears to have included the observation that the President of the Association had taken no part in the deliberations of the Committee which had led to the letters being sent. The letter is relatively brief, and we set it out in full:-
"Dear Member,
As you may be aware, the Legal Practice Board decided in March 2002, to register the Articles of a person who was convicted of stalking in 1999. His victim was a woman lawyer.
A good deal of concern has been expressed in the profession, particularly among women, about the prospect that this person may be admitted to practice.
On September 4th 2002, the person concerned advertised his intention to apply for admission in the West Australian Public Notices. He proposes to be admitted in the next admission ceremony, which is to be held on October 2, 2002.
It has been suggested by a number of our members that WLWA should file an objection to this person's admission, pursuant to s 21 of the Legal Practitioners Act, 1893 (WA).
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- After considerable debate and careful consideration, the Committee has decided that it is not able to lodge an objection. As there is so much interest in the issue among members, it was thought appropriate that members should be immediately informed of this decision.
It was also decided to advise members that they have the right to object as individuals, pursuant to s 21 of the Act which provides:
'(1) Any person having reasonable grounds to object to the admission of any other person as a practitioner may be heard personally or by counsel, with or without witnesses, to oppose such admission.
(2) A notice, stating the grounds of such objection, shall be lodged in the Supreme Court 7 days at least before the day on which the application for admission is made.'
Members wishing to know the particulars of the conduct involved, are directed to the decision of His Honour Justice McKechnie in Skerritt v O'Keefe (1999) WASCA 183."
74 In our view, what is significant about the letter is that, contrary to the submission made on behalf of the appellant, its terms do not make it clear that that Association takes the view that Mr Skerritt ought not to be admitted. In terms, it is a response to concern expressed by some persons and suggestions made by a number of members to the Committee of the Association. The Committee of the Association records its decision that it is "not able" to lodge an objection; there is no indication one way or the other as to whether it would have taken that course had it been able to do so. Apparently in response to the concern expressed by some members, members are advised of the Committee's decision and are advised of their own rights to object as individuals if they wish to do so. There is no urging of members to object or to adopt a particular view.
75 There is no material suggesting that any of the three individual members of the Association who sat on the Board took part in the relevant Committee deliberations, or were in any way involved in seeking to have the Women Lawyers Association take a particular stand. The Association did not take a particular stand with respect to the appellant's admission. It
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- is our view that no reasonable apprehension of bias can arise from those circumstances.
76 It was further submitted on behalf of the appellant that the apprehension of bias arising from the letter was "significantly increased" by certain other matters. In our view, there being no basis for the apprehension, there was nothing which could be "increased" by other circumstances. Dealing briefly with those other circumstances, however, they were as follows.
77 The three individuals mentioned were among those who were parties to the September 2002 resolution rescinding the previous determination of August 2002 and determining that an enquiry be held. There are two observations to be made about this point. The first is that it is not now, as we understand it, alleged that all of those persons who participated in the rescission motion should have been disqualified, and we therefore see no basis to single out any particular individuals amongst them on the basis of their participation in that resolution. It is self evident that a decision to hold an enquiry is quite different from a determination as to what the result of that enquiry ought to be.
78 One of the individuals mentioned was at the time of the s 20 inquiry a Commissioner of the Supreme Court, and had arranged to be absent from the Court so as to attend the Board hearing of 13 February 2003. It is submitted for the appellant that it was "remarkable" for a person to take time out from such duties to sit on the Board. In our view, it is far from remarkable that a member of the profession would consider it important to attend a meeting at which the serious question of a person's fitness to become a member of the profession was to be discussed. Presumably, the statutory intention is that those who are by the Act qualified to be members of the Board will take their duties seriously.
79 Finally, there is certain behaviour of two of the individuals, Ms Johnson (as her Honour then was) and Ms Liscia, which is said to be indicative of bias. It was suggested, in a letter written by the appellant's solicitors to the Board, that those two women sat together and "exchanged remarks and looks which manifested antagonism towards the [appellant]". As contained in the letter, a broad allegation of "looks" and "remarks" is one which cannot be sensibly dealt with. However, it was submitted, and the submission was supported by an affidavit which was tendered to us for the purpose of the appeal, that during the course of closing submissions of counsel for the appellant, counsel submitted that the appellant had done sufficient "penance" for his stalking conviction, and that one of those
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- women remarked to the other, who nodded in agreement, "not long enough".
80 A number of observations should be made about this remark. The first is plainly that the concern, which it caused the appellant and those close to him, illustrates why it is widely acknowledged that judicial officers and those exercising like functions should refrain from offhand or flippant remarks during the course of a hearing. The second observation is that it appears to us that the remark was offhand and flippant. As the Board points out in its reasons at par 4.7, in particular, the role which the Board performs is not a punitive one, but is protective of the community. It is not for the Board to be concerned with whether punishment imposed under the criminal system has been either inappropriate or inadequate. The Board clearly appreciated, it seems to us, that questions of "penance" were wholly irrelevant to the questions which it had to determine. Finally, we would note that the remark was, in any event, one apparently made during the course of closing submissions. A remark which might give rise to a reasonable apprehension of bias, in the sense of a prejudgment of the issue, at an earlier time, may well not be inappropriate if made at a time when all of the evidence has been heard, and the party affected has had the opportunity to make submissions. While it would clearly have been better had the remark never been made, it is our view that all of the circumstances to which we have referred are such that it was not necessary for either of those members to disqualify herself on the basis of either apprehended or actual bias.
Conclusion
81 It is our view that this appeal should be allowed, the decision of the Board quashed, and the matter remitted to the Board for further consideration in accordance with these reasons.
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